Figurowski v. Marbil Investors, LLC et al
Filing
82
MEMORANDUM & ORDER granting in part and denying in part 54 Motion for Summary Judgment; granting in part and denying in part 73 Motion for Summary Judgment; For the foregoing reasons, Defendants' motion for summary judgment against Doroth y Figurowski (Docket Entry 54) is GRANTED IN PART and DENIED IN PART. Dorothy's overtime claims under the FLSA and the NYLL and her minimum wage claim under the FLSA are DISMISSED WITH PREJUDICE. The Court declines to exercise supplemental juris diction over her remaining state law claims, and they are DISMISSED WITHOUT PREJUDICE to refiling in state court. The Clerk of the Court is directed to TERMINATE Dorothy Figurowski as a Plaintiff in this matter and to enter judgment accordingly. Defe ndants and Lieb's motion for summary judgment against Roger Figurowski is GRANTED IN PART and DENIED IN PART. Specifically, the motion is DENIED with respect to Roger's claim for retaliation under the ADEA and the NYSHRL for Defendants' ; refusal to pay him severance, and GRANTED in all other respects. Accordingly, his claims for age discrimination under the ADEA and the NYSHRL, retaliation under the ADEA and NYSHRL relating to his restricted access to the basement storage room, ai ding and abetting by Lieb in violation of the NYSHRL, and breach of contract are DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to TERMINATE Barbara Lieb as a Defendant in this matter. The parties shall file letters within fourteen (14) days of the date of this Memorandum and Order setting forth their respective positions on scheduling a settlement conference with Judge A. Kathleen Tomlinson. Additionally, the parties are directed to file a revised proposed joint pretrial order wit hin thirty (30) days of the date of this Memorandum and Order and are further directed to appear for a pre-trial conference with Judge Tomlinson on May 14, 2018 at 11:30AM. So Ordered by Judge Joanna Seybert on 3/30/2018. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
DOROTHY FIGUROWSKI,
Plaintiff,
MEMORANDUM & ORDER
14-CV-7032(JS)(AKT)
-againstMARBIL INVESTORS, LLC, WILLIAM J.
CHRISTIE, and EMMETT CHRISTIE,
Defendants.
---------------------------------------X
ROGER FIGUROWSKI,
Plaintiff,
14-CV-7034(JS)(AKT)1
-againstMARBIL INVESTORS, LLC, WILLIAM J.
CHRISTIE, EMMETT CHRISTIE, and BARBARA
LIEB, as Aider and Abettor,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Dorothy Figurowski Amrita Ashok-Khan, Esq.
Joseph A. Myers, Esq.
Patricia Lynne Boland, Esq.
Neil Frank, Esq.
Neil Frank and Associates
500 Bicounty Boulevard, Suite 465
Farmingdale, NY 11735
Roger Figurowski (“Roger”) and Dorothy Figurowski (“Dorothy,”
and together with Roger, “Plaintiffs”) initially filed separate
actions, but on May 18, 2017, the Court consolidated the cases
under Docket Number 14-CV-7032 and marked Docket Number 14-CV7034 closed. (May 18, 2017 Elec. Consol. Order.) Unless
otherwise indicated, all docket entries referenced herein refer
to the consolidated action, Docket Number 14-CV-7032.
1
Roger Figurowski
Amrita Ashok-Khan, Esq.
Joseph A. Myers, Esq.
Patricia Lynne Boland, Esq.
Neil Frank, Esq.
Neil Frank and Associates
500 Bicounty Boulevard, Suite 465
Farmingdale, NY 11735
Lauren R. Reznick, Esq.
Leeds Brown Law, PC
1 Old Country Road, Suite 347
Carle Place, NY 11514
For Defendants:
Andrew E. Curto, Esq.
Frank W. Brennan, Esq.
Gregory S. Lisi, Esq.
Forchelli, Curto, Deegan,Schwartz, Mineo
Terrana, LLP
333 Earle Ovington Blvd., Suite 1010
Uniondale, NY 11553
&
SEYBERT, District Judge:
Pending
before
the
Court
are
(1)
Defendants
Marbil
Investors, LLC (“Marbil”), William J. Christie (“William”), and
Emmett
Christie’s
(“Emmett,”
and
collectively,
“Defendants”)
motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56, (Defs.’ Dorothy Mot., Docket Entry 54), and (2)
Defendants
and
Barbara
Lieb’s
(“Lieb”)
motion
for
summary
judgment, (Defs.’ Roger Mot., Docket Entry 73).
For
the
following
reasons,
Defendants’
motion
on
Dorothy’s claims is GRANTED IN PART and DENIED IN PART, and
Defendants’ motion on Roger’s claims is GRANTED IN PART and DENIED
IN PART.
2
BACKGROUND2
I.
Factual History
A.
Greenbrier Hires Roger
In 1980, Marbil acquired the Greenbrier Luxury Garden
Apartments
(“Greenbrier”),
a
two-story,
residential property in Patchogue, New York.
eighty-one-unit
(Defs.’ Dorothy 56.1
Stmt. ¶¶ 23-24; Dorothy’s Am. Compl., Docket Entry 26, ¶ 13.)
Marbil retained Robert Thek (“Thek”) of Robert Thek & Associates
(“RTA”) to serve as Greenbrier’s property manager. (Defs.’ Dorothy
56.1 Stmt. ¶ 25.)
In that capacity, Thek was responsible for
hiring, firing, recommending salaries and salary increases, and
recommending
employees.
benefits
and
benefit
changes
for
all
Greenbrier
(Defs.’ Dorothy 56.1 Stmt. ¶¶ 26-27.)
In 1992, after responding to a newspaper ad for a
superintendent position, Roger met with Thek.
56.1 Stmt. ¶¶ 28-29.)
(Defs.’ Dorothy
As a result of the meeting, RTA hired Roger
to serve as a trial superintendent at the Country Club Gardens,
The following facts are taken from the parties’ Local Civil
Rule 56.1 Statements and Counterstatements. Any relevant
factual disputes are noted. Internal quotation marks and
citations have been omitted. Citations are as follows:
Defendants’ 56.1 Statement in support of their motion against
Dorothy (Defs.’ Dorothy 56.1 Stmt., Docket Entry 59); Dorothy’s
56.1 Counterstatement (Dorothy’s 56.1 Counterstmt., Docket Entry
48-2); Defendants’ 56.1 Statement in support of their motion
against Roger (Defs.’ Roger 56.1 Stmt., Docket Entry 77); and
Roger’s 56.1 Counterstatement (Roger’s 56.1 Counterstmt., Docket
No. 14-CV-7034, Entry 37-2).
2
3
which was not associated with Defendants.
(Defs.’ Dorothy 56.1
Stmt. ¶ 30.)
Subsequently, in March 1992, Defendants hired Roger as
the sole, live-in superintendent for Greenbrier.
56.1
Stmt.
¶
maintenance,
32.)
His
supervising
duties
three
included
to
four
(Defs.’ Dorothy
performing
workers,
building
checking
and
showing apartments, calling potential tenants, collecting wage
statements from potential tenants, collecting rent, assisting in
tenant evictions, and addressing problems as they arose.
(Defs.’
Dorothy 56.1 Stmt. ¶ 33; Defs.’ Roger 56.1 Stmt. ¶ 18.)
During
his deposition, Roger testified that he was hired to perform
building maintenance, check and show apartments, collect rent, and
supervise workers, and that he performed those duties from 1992
through 2014.
2,
(Roger Dep., Brennan Decl. Ex. 2, Docket Entry 56-
132:12-24, 139:20-140:16.)
Plaintiffs dispute that at the
time of his hire, Roger was responsible for collecting rent,
calling
potential
statements
evictions.3
from
tenants,
potential
collecting
tenants,
or
and
reviewing
assisting
with
wage
tenant
(Roger’s 56.1 Counterstmt. ¶ 17.)
Other than testimony from Roger’s wife, Dorothy, that Roger did
not initially collect rent from tenants, (Dorothy Dep., Brennan
Decl. Ex. 3, Docket Entry 56-3, 58:21-59:18), the cited
testimony does not clearly contradict Roger’s deposition
testimony. For instance, Dorothy testified that Roger was hired
to do maintenance work, but that Thek also discussed “apartment
rentals” with Plaintiffs. (Dorothy Dep. 56:23-58:20.) Further,
when asked if Roger was responsible for renting or showing
3
4
As payment for his duties, Roger received an annual wage
and was permitted to reside with Dorothy and their four children,
rent free, in Greenbrier apartment 311-2.
(Defs.’ Dorothy 56.1
Stmt. ¶¶ 34-35.)
B.
Dorothy’s Relationship with Greenbrier
The parties dispute whether Dorothy performed work for
Greenbrier and Defendants.
Roger testified that in 1992, only he
was offered a position with Greenbrier and only he received pay
from Greenbrier.
(Roger Dep. 20:12-17.)
Similarly, Dorothy
testified that when Roger was hired, she did not discuss with
William,
a
partner
at
Marbil,
or
Emmett,
the
overseer
of
superintendents at Marbil, (William Dep., Brennan Decl. Ex. 1,
Docket Entry 56-1, 4:17-22), whether she was being hired to perform
work at Greenbrier.
(Dorothy Dep. 56:8-17).
She testified that
she was not performing work at that time, but that the work “came
on as the years went by.”
(Dorothy Dep. 56:15-17.)
Additionally,
she acknowledged that in 1992, Thek did not tell her that she would
be a clerical worker or rental agent or that she would receive
pay.
(Dorothy Dep. 58:5-9, 94:2-6.)
However, Dorothy also testified that after Roger was
hired, she met with Thek, who explained that Roger was responsible
apartments, Dorothy explained, “You know what, I don’t really
recall the exact wording details. It’s such [ ] a long time
ago.” (Dorothy Dep. 56:23-58:20.)
5
for
maintenance,
but
also
discussed
apartment
rentals
suggested that she “help out” and “show a little bit.”
Dep. 57:11-58:9.)
and
(Dorothy
Similarly, she testified that she was expected
to help Roger show the apartments and “had work to do in the
beginning.”
(Dorothy Dep. 92:5-93:25.)
Additionally, Dorothy testified that for the last ten
years, Thek told her that she “need[ed] to get paid.”
Dep. 94:2-18.)
(Dorothy
Roger also testified that six or seven years after
his hire, Thek spoke to Dorothy about “trying to get her . . . paid
for what she[ ] does, because she did answer all the phone calls,
did all the E-mails and stuff like that.”
(Roger Dep. 21:7-13.)
Roger, however, acknowledged that those duties were initially
assigned to and were never taken from him, (Roger Dep. 21:1422:6), and Dorothy agreed that Roger was hired to perform those
tasks, (Dorothy Dep. 104:15-24).
1.
Bankruptcy Filings
A number of other events shed light on the nature of
Dorothy’s
relationship
with
Greenbrier
and
Defendants.
For
instance, in 2009, Roger and Dorothy filed for bankruptcy in the
U.S. Bankruptcy Court for the Eastern District of New York.
(Defs.’ Dorothy 56.1 Stmt. ¶ 39.)
In support of their filing,
they completed and filed with the bankruptcy court a document
entitled “Schedule I - Current Income of Individual Debtor(s),” on
which they listed Dorothy’s occupation as a “Homemaker” with no
6
income. (Defs.’ Dorothy 56.1 Stmt. ¶ 40; Schedule I, Brennan Decl.
Ex. 5, Docket Entry 56-5, at ECF p. 2-3.)
Additionally, Dorothy
executed and presented to the bankruptcy court an “Affidavit of
Income” testifying that she was a “homemaker.”4
(Defs.’ Dorothy
56.1 Stmt. ¶ 41; Aff. of Income, Brennan Decl. Ex. 5, Docket Entry
56-5, at ECF p. 4.)
2.
May 2012 Letter to Defendants
Additionally, on or about May 14, 2012, Dorothy sent a
letter to William to complain that, among other things, she and
Roger
had
not
been
properly
compensated
and
reimbursed
for
“expenses,” including overtime compensation, unused vacation time,
cell phones used for work, and commissions for renting apartments.
(Defs.’ Dorothy 56.1 Stmt. ¶ 42; Dorothy Dep. 134:4-13.)
Dorothy
testified that there was never an agreement that Defendants would
reimburse her for these “expenses,” (Dorothy Dep. 134:4-22), but
she added that Thek told her many times over the years that he
would pay her, or would tell William and Emmett to pay her, for
her work at Greenbrier, (Dorothy Dep. 135:22-137:9).
However,
Dorothy was not paid as a result of the May 2012 letter.
(See
Defs.’ Dorothy 56.1 Stmt. ¶¶ 42-43.)
Plaintiffs purport to dispute these facts, alleging that “[a]
Bankruptcy Court employee instructed [Dorothy] to identify as a
‘homemaker,’ since she derived no income from the services which
she provided to Defendant, and was unable to provide proof of
income due to the Defendants’ failure to provide her with wage
statements.” (Dorothy’s 56.1 Counterstmt. ¶¶ 40-41.)
4
7
3.
August 2012 Commission Agreement with Thek
In or about August 2012, Dorothy and Thek agreed that
Dorothy would be paid a $200 commission for each apartment she
helped rent.
(Defs.’ Dorothy 56.1 Stmt. ¶ 44; Dorothy’s 56.1
Counterstmt. ¶ 44; Dorothy Dep. 130:22-131:16.)
Dorothy testified
that Thek “want[ed]” William and Emmett to pay her, but that he
never said that they agreed to the arrangement.
130:22-132:11.)
(Dorothy Dep.
Dorothy initially helped rent four (4) apartments
and received a commission of $800, (Defs.’ Dorothy 56.1 Stmt.
¶ 46), but in all, from about August 28, 2012 to June 25, 2013,
Thek paid Dorothy $2,400 in commissions for the rental of twelve
(12) apartments at Greenbrier, (Defs.’ Dorothy 56.1 Stmt. ¶ 49).
Dorothy testified that Emmett “put a stop to” these
payments because “whatever was given to [her] was supposed to be
discussed between” Thek and Emmett, and the two had not discussed
the arrangement.
(Dorothy Dep. 132:25-133:19.)
She testified
further that on or about August 12, 2013, Emmett informed her that
“it has been brought to [our] attention that Bob Thek . . . has
been paying a $200 bonus for any apartment rented at Greenbrier
and that $800 total has been made out to you in the last month’s
statement, which was unauthorized.
been
discussed
immediately.”
by
anyone
from
This arrangement has never
this
office
(Dorothy Dep. 224:21-225:12.)
8
and
will
cease
Plaintiffs
aver
that
Emmett
was
aware
of
Dorothy’s
arrangement with Thek and of Thek’s “promise to pay [Dorothy] for
the work that she did for” Greenbrier, citing her testimony that
she spoke to Emmett about being paid in “probably 2012 [or] 2013”
and that Emmett responded that they could discuss the matter
another time.
(Dorothy’s 56.1 Counterstmt. ¶ 50; Dorothy Dep.
96:15-97:11.)
Additionally, Plaintiffs highlight a letter from
William
to
Thek
dated
April
25,
2013
referencing
Dorothy’s
commissions, which provides that the expenditure has “never been
authorized or discussed with Emmett or me and, therefore, [it is]
strictly unauthorized.”
(Apr. 2013 Letter, Myers Decl. Ex. 20,
Docket Entry 64-20.)
4.
Emmett’s Other Communications with Dorothy
Plaintiffs also aver that Emmett “had full knowledge
that [Dorothy] was working for [Greenbrier], and would often
provide her with work assignments.”
¶ 50.)
(Dorothy’s 56.1 Counterstmt.
In support, Plaintiffs point to Dorothy’s testimony that
Emmett asked for updates about her work, (Dorothy Dep. 108:13109:2), as well as work-related emails from Emmett to Dorothy or
to “Roger/Dorothy” (Dorothy’s 56.1 Counterstmt. ¶ 50; June 2011
Email, Myers Decl. Ex. 15, Docket Entry 64-15, at ECF p.2).
For
instance, on June 30, 2011, Emmett wrote: “Roger/Dorothy: With the
vacancy count being high at Greenbrier, please continue to work
these leads I am sending you.”
(June 2011 Email, at ECF p.2; see
9
also Nov. 2013 Email, Myers Decl. Ex. 16, Docket Entry 64-16, at
ECF p. 4 (“Dorothy please forward me the 6 leases that you have
there[.] I need them since we now have all of the leases in house.
[T]hanks. Emmett.”).)
C.
The Boiler Replacement Project
In or about 2013, Defendants replaced the boilers at
Greenbrier.5
(Defs.’ Roger 56.1 Stmt. ¶ 22.) Defendants aver that
Roger worked on the boilers despite being told not to do so, while
Plaintiffs claim that Roger worked on them at the urging of the
boiler technician, Mike.
(Defs.’ Roger 56.1 Stmt. ¶¶ 23-24;
Roger’s 56.1 Counterstmt. ¶¶ 23-24.) In any event, Roger testified
that a worker whom he supervised, Jose, installed circulator pumps
on the boilers, that Roger did not know in which direction they
were supposed to be installed, and that one of the pumps was
installed backwards under Roger’s supervision.
(Roger Dep. 113:5-
114:24.)
William testified that Roger was told “not to touch” the
new boiler system.
(William Dep. 22:10-13.)
Additionally, Roger
testified that “they”--presumably, Defendants--told him not to
touch the boilers, but that Mike told him that “the supers are
While Plaintiffs do not dispute the statement that Defendants
undertook this project in or about 2013, (Roger’s 56.1
Counterstmt. ¶ 22), they cite an email from October 2011
regarding boilers, (Roger’s 56.1 Counterstmt. ¶ 23). In light
of this email, it seems that Defendants may have replaced
Greenbrier’s boilers earlier than 2013.
5
10
supposed to do the circulator” pumps, so Roger asked him for
guidance.6
(Roger Dep. 112:19-113:4.)
According to Roger, Mike
ultimately “made a few comments” criticizing Roger’s work on the
circulator pumps.
D.
(Roger Dep. 117:2-18.)
Apartment 311-3
In or about March 2013, Thek directed Roger to renovate
the bathroom of and rent out apartment 311-3, the unit next to
Plaintiffs’ apartment.
(Defs.’ Roger 56.1 Stmt. ¶ 26.)
In or
about August 2013, after completing the renovation, Roger cut a
hole through the wall of his and Dorothy’s apartment so that they
could access and occupy apartment 311-3, though the parties dispute
the circumstances surrounding this action.
(Defs.’ Dorothy 56.1
Stmt. ¶ 51; Dorothy’s 56.1 Counterstmt. ¶ 51.)
Roger testified
that without Emmett’s or William’s permission, he took over the
apartment while Thek was no longer at Greenbrier.
98:15-99:8.)
(Roger Dep.
Dorothy, however, testified that Plaintiffs did not
initially want to move into the apartment or cut a hole in the
wall, but that Thek told them to do so and said that if they did
not cut through the wall, he would. (Dorothy Dep. 158:7-24, 174:221.)
Defendants aver that Thek instructed Plaintiffs to cut
Plaintiffs also highlight the fact that Dorothy sent an email
to Emmett on October 29, 2011, explaining that Roger was having
issues with the new boilers and asking for help because he did
not want to be blamed for any problems that might occur. (Oct.
2011 Email, Myers Decl. Ex. 13, Docket Entry 79-13.)
6
11
through their wall because of his diminished mental capacity,
citing
Roger’s
testimony
that
in
Thek’s
last
two
years
at
Greenbrier, he was weakening “mostly physically” and that his
mental capacity was “getting there, but not that bad.”
(Defs.’
Dorothy 56.1 Stmt. ¶ 51; Roger Dep. 98:4-14.)
To power apartment 311-3, Plaintiffs ran an extension
cord to the basement and tapped into the building’s common power
supply; however, the parties dispute whether this was authorized.
(Defs.’ Dorothy 56.1 Stmt. ¶ 52; Dorothy’s 56.1 Counterstmt. ¶ 52.)
Dorothy testified that rather than have the power company turn on
the power to apartment 311-3, Plaintiffs told Thek that they would
run a cord to the basement, and he consented.
161:12-162:8.)
(Dorothy Dep.
Roger testified that he ran the wire to draw power
from the basement because he “didn’t want to make any kind of
[electric] bills there.”
Around
(Roger Dep. 44:24-46:13.)
December
2013,
Thek
was
terminated
as
Greenbrier’s property manager, (Defs.’ Dorothy 56.1 Stmt. ¶ 53;
Dorothy’s 56.1 Counterstmt. ¶ 53), because, as William testified,
his “health was deteriorating [and] [w]e thought he wasn’t of good
sound mental mind.
There were poor decisions being made.
things being overlooked.
And
And certain things that were between him
and Roger that I wasn’t happy with.”
12
(William Dep. 20:4-11).
Marbil replaced Thek7 with Lieb of Vea Las Vistas, Inc.
(Defs.’
Dorothy 56.1 Stmt. ¶ 54.)
During
a
property
inspection,
Lieb
discovered
that
Plaintiffs had cut through the wall of apartment 311-2, ran an
extension cord to the basement of the building, and tapped into
the building’s power supply to occupy apartment 311-3.
Dorothy 56.1 Stmt. ¶ 55.)
She directed Plaintiffs to vacate
apartment 311-3, fix the hole, and remove the wiring.
Dorothy 56.1 Stmt. ¶ 56.)
(Defs.’
(Defs.’
Plaintiffs obliged, and very soon
thereafter, apartment 311-3 was rented for $1,099 per month.
(Defs.’ Dorothy 56.1 Stmt. ¶ 57.)
In all, Plaintiffs occupied
apartment 311-3 from August 2013 through January 2014 without
paying rent and without paying for any utilities that they used.8
(Defs.’ Dorothy 56.1 Stmt. ¶ 58.)
On January 27, 2014, Defendants advised Roger that the
unauthorized occupancy and wiring of apartment 311-3 were illegal
and extremely dangerous to the tenants of the building, and they
put Roger on notice that, “based on these serious infractions,”
7
Thek is now deceased.
(William Dep. 8:2-5.)
Plaintiffs dispute this statement, but the evidence they cite
in no way contradicts it. (See Dorothy’s 56.1 Counterstmt. ¶ 58
(citing Dorothy Dep. 173:8-12 (testifying that Emmett had not
agreed to Plaintiffs’ occupancy and that he instructed them to
close the hole, which they did).)
8
13
Defendants would evaluate his employment status.
(Defs.’ Dorothy
56.1 Stmt. ¶ 59; Dorothy Dep. 265:19-266:8.)
Lieb also discovered that Plaintiffs had been occupying
areas in the basement of the apartment building as a storage and
laundry area without paying rent for their use, (Defs.’ Dorothy
56.1 Stmt. ¶ 60), which Plaintiffs also claim was authorized by
Thek, (Dorothy’s 56.1 Counterstmt. ¶ 60; Dorothy Dep. 83:1684:18).
Additionally, Plaintiffs occupied another room for their
children to use as an exercise space and did not pay rent for it.
(Defs.’ Dorothy 56.1 Stmt. ¶ 61.)
E.
Defendants Fire Roger
On May 2, 2014, Defendants advised Roger, who Plaintiffs
aver was 69 years old at the time, (Roger’s Opp., Docket Entry 78,
at 6), that they were terminating his employment.
56.1
Stmt.
¶
62.)
Defendants
allowed
(Defs.’ Dorothy
Plaintiffs
to
occupy
apartment 311-2 through June 17, 2014, but directed Roger to turn
in all of his keys to the Greenbrier complex.
56.1 Stmt. ¶ 62.)
(Defs.’ Dorothy
Defendants advised Roger that they would pay
him severance pay of four weeks’ salary in two installments.
(Defs.’ Dorothy 56.1 Stmt. ¶ 62.)
They paid him the first
installment of $1,065.52 on May 2, 2014, and said they would pay
him the second installment when Plaintiffs vacated the apartment
on June 17, 2014.
(Defs.’ Dorothy 56.1 Stmt. ¶¶ 62, 65.)
14
After
his
termination,
Roger
returned
his
keys
and
Defendants secured the Greenbrier complex, including by having its
new,
younger,
(Roger’s
Opp.
at
13-14),
superintendent,
James
Bagger (“Bagger”), lock the door to the basement storage room that
Plaintiffs had been using.
(Defs.’ Dorothy 56.1 Stmt. ¶¶ 63-64;
Defs.’ Roger 56.1 Stmt. ¶ 50.)
Thereafter, Plaintiffs requested
that Defendants provide them access to the basement storage room
so that they could remove their belongings, and Defendants granted
them access.
(Defs.’ Dorothy 56.1 Stmt. ¶ 66.)
Dorothy testified
that the door was locked on May 2, 2014, and that it would be
“locked off and on according to when [they] needed it.”
(Dorothy
Dep. 210:6-211:11.)
F.
Plaintiffs Notify Defendants of Their Claims
On June 2, 2014, Plaintiffs’ counsel wrote to Defendants
and informed them for the first time that Plaintiffs intended to
pursue them for age discrimination and wage and hour violations.
(Defs.’ Dorothy 56.1 Stmt. ¶ 70.)
Plaintiffs claim that before Defendants were notified of
this lawsuit, Dorothy was “freely permitted” to “coordinate with”
Bagger to retrieve her belongings from the basement area, but that
after their letter, Emmett had to approve all requests to enter
the space, which restricted their access to the room.
56.1 Counterstmt. ¶ 69.)
(Dorothy’s
Plaintiffs claim that Dorothy was
required to “repeatedly ask the new superintendent” and Lieb to
15
open the door, and that she was forced to email Defendants to
obtain
her
belongings.
(Dorothy’s
56.1
Counterstmt.
¶
69.)
Dorothy also testified that Bagger told her that he could not
unlock the space, and that she had to call Greenbrier.
(Dorothy
Dep. 211:22-212:8.) Roger testified that after sending the letter,
Plaintiffs were granted supervised access to the basement storage
area on several occasions to remove the remainder of his family’s
belongings.
(Roger Dep. 157:18-24.)
However, Plaintiffs claim
that they were given only two hours to do so.
(Roger’s 56.1
Counterstmt. ¶ 47.)
On or about June 17, 2014, Plaintiffs and their children
vacated apartment 311-2 and took the apartment’s refrigerator and
stove.
(Defs.’ Dorothy 56.1 Stmt. ¶ 71; Roger Dep. 162:5-8.)
Plaintiffs claim that they replaced the original appliances with
their own, and that the refrigerator and stove were “not fixtures
in the apartment and were not the property of the Defendant.”
(Dorothy’s 56.1 Counterstmt. ¶ 71.)
After Plaintiffs vacated the apartment, Defendants did
not pay Roger the second half of his severance pay.
11:12-12:5.)
(William Dep.
When asked if he knew why Roger was not paid the
second installment, William testified “I guess he retained counsel
to sue us.
It wasn’t part of the arrangement that was fair.”
(William Dep. 11:18-21.)
16
II.
Procedural History
A.
Dorothy’s Action
Dorothy
filed
her
Complaint
(Dorothy’s Compl., Docket Entry 1.)
on
December
3,
2014.
On March 26, 2015, Dorothy
filed an Amended Complaint, (See Dorothy’s Am. Compl.), which
Defendants answered on April 9, 2015, (Ans. to Dorothy’s Am.
Compl., Docket Entry 27).
Dorothy’s Amended Complaint alleges that Defendants:
failed to pay Dorothy minimum wage and overtime wages in violation
of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.;
failed to pay her minimum wage in violation of the New York Labor
Law (“NYLL”), N.Y. Lab. Law §§ 190 et seq. & 650 et seq.; failed
to pay her overtime wages in violation of the NYLL; violated the
notice
and
record-keeping
requirements
of
NYLL
Section 195;
retaliated against her for complaining about her unpaid wages in
violation of NYLL Section 215; and failed to compensate her for
her
efforts,
under
a
quantum
meruit
(Dorothy’s Am. Compl. ¶¶ 38-60.)
theory
of
liability.
Dorothy seeks unpaid overtime
and minimum wages, pre- and post-judgment interest, liquidated
damages, a declaratory judgment, actual damages for loss of income
and
employment-related
benefits,
compensatory
damages
for
emotional distress and mental anguish, front pay, attorneys’ fees
and costs, and statutory damages.
17
(Dorothy’s Am. Compl. at 8-9.)
On April 24, 2017, Defendants filed their motion for
summary judgment against Dorothy, (Defs.’ Dorothy Br., Docket
Entry 58), and Dorothy opposed the motion on April 24, 2017,
(Dorothy Opp., Docket Entry 63).
May 8, 2017.
B.
Defendants filed their reply on
(Defs.’ Dorothy Reply, Docket Entry 66.)
Roger’s Action
Roger filed his Complaint against Defendants and Lieb on
December 3, 2014, alleging claims for, among other things, unpaid
overtime wages under the FLSA and NYLL and unpaid spread-of-hours
pay under the NYLL.
1, ¶¶ 58-70.)
(Roger’s Compl., Docket No. 14-CV-7034, Entry
On February 9, 2015, Defendants and Lieb filed a
motion to dismiss Roger’s overtime and spread-of-hours claims
under the NYLL, retaliation and aiding and abetting claims under
the New York State Human Rights Law (“NYSHRL”), NY Exec. Law § 296
et seq., and breach of contract claim.
(Defs.’ Feb. 2015 Mot. to
Dismiss, Docket No. 14-CV-7034, Entry 13.)
Roger’s Complaint on February 9, 2015.
Defendants answered
(Ans. to Roger’s Compl.,
Docket No. 14-CV-7034, Entry 18.)
On July 1, 2015, this Court granted Defendants and Lieb’s
motion in part and dismissed with prejudice Roger’s overtime and
spread-of-hours pay claims under the NYLL.
Order, Docket No. 14-CV-7034, Entry 25, at 11.)
Court
sua
sponte
dismissed
without
(July 2015 Mem. &
Additionally, the
prejudice
Roger’s
age
discrimination, retaliation, aiding and abetting, and breach of
18
contract claims for lack of subject matter jurisdiction.
(July
2015 Mem. & Order, at 11.)
On August 5, 2015, Roger filed an Amended Complaint
alleging that Defendants: failed to pay him overtime wages in
violation of the FLSA; violated NYLL Section 195’s notice and
record-keeping requirements; fired him because of his age in
violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq., and the NYSHRL; retaliated
against him for his complaints of age discrimination in violation
of the ADEA and the NYSHRL; aided and abetted age discrimination
in violation of NYSHRL; and breached a contract by failing to pay
the balance of his severance pay.
14-CV-7034, Entry 27, ¶¶ 59-86.)
(Roger’s Am. Compl., Docket No.
Roger seeks unpaid overtime
wages, liquidated damages, pre- and post-judgment interest, a
declaratory
judgment,
actual
damages
for
loss
of
income
and
employment-related benefits, compensatory damages for emotional
distress and mental anguish, front pay, attorneys’ fees and costs,
and statutory damages.
(Roger’s Am. Compl. at 11-12.)
Defendants
and Lieb answered Roger’s Amended Complaint on August 14, 2015.
(Ans. to Roger’s Am. Compl., Docket No. 14-CV-7034, Entry 28.)
On March 20, 2017, this Court so ordered the parties’
stipulation of dismissal with respect to Roger’s FLSA overtime
claim and NYLL Section 195 claim.
14-CV-7034, Entry 45.)
19
(Mar. 2017 Order, Docket No.
Defendants
filed
their
motion
for
summary
judgment
against Roger on March 24, 2017 (Defs.’ Roger Br., Docket Entry
76.)
Roger opposed the motion on April 24, 2017, (Roger’s Opp.),
and Defendants filed their reply brief on May 8, 2017, (Defs.’
Roger Reply, Docket No. 14-CV-7034, Entry 59).
C.
Consolidation
On March 18, 2015, Roger’s and Dorothy’s actions were
consolidated for the purposes of discovery.
(Mar. 18, 2015 Stip.
& Order, Docket Entry 25.) On May 18, 2017, the Court consolidated
Roger’s and Dorothy’s suits.
(May 18, 2017 Elec. Consol. Order.)
DISCUSSION
In Dorothy’s opposition, she indicated that she does not
oppose Defendants’ motion with respect to her overtime claims.
(Dorothy’s
Opp.,
Docket
Entry
63,
at
1
n.1.)
Accordingly,
Dorothy’s overtime claims are DISMISSED WITH PREJUDICE.
Thus,
Dorothy’s remaining claims are for minimum wages under the FLSA
and the NYLL; violations of the NYLL’s notice and record-keeping
requirements; retaliation under the NYLL; and quantum meruit.
Similarly, in his opposition, Roger noted that he does
not oppose the motion to the extent that it seeks summary judgment
on his aiding and abetting claim against Lieb.
1 n.1.)
(Roger’s Opp. at
Accordingly, the aiding and abetting claim against Lieb
is DISMISSED WITH PREJUDICE. Because there are no remaining claims
against Lieb, the Clerk of the Court is directed to TERMINATE her
20
as a defendant.
Thus, Roger’s remaining claims are for age
discrimination in violation of the ADEA and the NYSHRL (“Roger’s
Age Discrimination Claims”); retaliation in violation of the ADEA
and the NYSHRL (“Roger’s Retaliation Claims”); and breach of
contract.
I.
Legal Standard
Summary
judgment
will
be
granted
where
the
movant
demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a).
A genuine factual issue exists where “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).
In
determining whether an award of summary judgment is appropriate,
the Court considers the “pleadings, deposition testimony, answers
to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.
Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
Once
the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”
Giglio
v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
21
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).
Conclusory allegations or denials will not defeat
summary judgment.
Id.
However, in reviewing the summary judgment
record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”
Sheet Metal Workers’
Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
II.
Dorothy’s FLSA Claim
Defendants argue that Dorothy’s minimum wage claim fails
because she was a volunteer, not an “employee.”
Br. at 17-20.)
(Defs.’ Dorothy
In response, Dorothy contends that she was an
“employee” under the FLSA because she sought compensation and
Defendants “suffered and permitted” her to work.
(Dorothy’s Opp.
at 6-9.)
With some exceptions, “the FLSA requires employers to
pay
all
employees
a
specified
minimum
wage.”
Glatt
v.
Fox
Searchlight Pictures, Inc., 811 F.3d 528, 533 (2d Cir. 2016)
(citing
29 U.S.C. §§ 206–07).
employees,”
which
the
“FLSA
The
FLSA
only
to
defines . . . as
unhelpfully
‘individual employed by an employer.’”
29 U.S.C. § 203(e)(1)).
“appl[ies]
an
Id. at 534 (quoting
Under the FLSA, “‘[e]mploy’ includes to
suffer or permit to work.”
29 U.S.C. 203(g).
22
The term “employee”
has been construed broadly, see Brown v. New York City Dep’t of
Educ., 755 F.3d 154, 161 (2d Cir. 2014), as evidenced by several
regulations identified by Plaintiffs.9
(See Dorothy’s Opp. at 6.)
However, while the FLSA’s coverage is broad, the Supreme Court has
explained that “[t]he definition ‘suffer or permit to work’ was
obviously not intended to stamp all persons as employees who,
without any express or implied compensation agreement, might work
for their own advantage on the premises of another.”
Walling v.
Portland Terminal Co., 330 U.S. 148, 152, 67 S. Ct. 639, 641, 91
L. Ed. 809 (1947).
In Walling, the Supreme Court held that unpaid railroad
brakemen trainees were not employees entitled to minimum wages
under the FLSA.
L. Ed. 809.
Walling, 330 U.S. at 152-53, 67 S. Ct. at 641, 91
As summarized by the Second Circuit in Glatt, the
Supreme Court “adduced several facts” in reaching its decision:
(1) “the brakemen-trainees at issue did not displace any regular
employees,
and
their
work
did
not
expedite
the
employer’s
business,” (2) “the brakemen-trainees did not expect to receive
any compensation and would not necessarily be hired upon successful
completion of the course,” (3) “the training course was similar to
Dorothy cites 29 U.S.C. § 785.11 (“Work not requested but
suffered or permitted is work time.”) and 29 U.S.C. § 785.13
(“In all such cases it is the duty of the management to exercise
its control and see that the work is not performed if it does
not want it to be performed. It cannot sit back and accept the
benefits without compensating for them.”).
9
23
one offered by a vocational school,” and (4) “the employer received
no immediate advantage from the work done by the trainees.” Glatt,
811 F.3d at 534 (citing Walling, 330 U.S. at 149-50, 152-53, 67 S.
Ct. at 640-42, 91 L. Ed. 809).
In Glatt, the Second Circuit
ultimately developed a “primary beneficiary test,” a set of nonexhaustive factors to help courts determine whether an intern is
an employee under the FLSA.
Id. at 536-37 (citing Velez v.
Sanchez, 693 F.3d 308, 330 (2d Cir. 2012), and Brock v. Superior
Care, Inc., 840 F.2d 1054, 1058–59 (2d Cir. 1988), and noting that
similar factor tests have been developed in the domestic worker
and independent contractor contexts).
The Second Circuit noted
that the “touchstone of this analysis is the ‘economic reality’ of
the relationship.”
Health
&
Hosps.
Id. at 537 (quoting Barfield v. N.Y. City
Corp.,
537
F.3d
132,
141
(2d
Cir.
2008)).
“[E]conomic realities are assessed by reference to ‘the particular
situation’ with some factors more important than others depending
on the FLSA question at issue and the context in which it arises.”
Brown, 755 F.3d at 167-68 (quoting 29 C.F.R. § 553.106) (outlining
various Second Circuit economic realities tests).
economic
realities
is
a
question
of
fact,
while
Weighing the
“the
legal
conclusion to be drawn from those facts--whether workers are
employees . . . --is a question of law.
Brock, 840 F.2d at 1059.
Dorothy argues that she was an “employee” covered by the
FLSA, (Dorothy’s Opp. at 6-8), while Defendants contend that she
24
was merely an individual who, without any expectation or promise
of compensation, performed activities assigned to and carried on
by Roger, (Defs.’ Dorothy Br. at 17-20).
The facts before the
Court do not fit squarely within the Second Circuit’s existing
Nonetheless, in light of Glatt and Walling and
factor tests.10
considering the totality of the circumstances, the Court weighs
whether
the
economic
realities
establish
that
Dorothy
was
Defendants’ employee or simply a volunteer helping her husband
perform his job.
See Brown, 755 F.3d at 170 (“No single economic
realities test, however, applies to all FLSA questions.
Rather,
a court must identify, from the totality of circumstances, the
economic
(and
other)
factors
most
relevant
to
the
issue
in
dispute.”).
Viewing the facts in the light most favorable to Dorothy,
the
Court
concludes
that
she
was
not
Defendants’
employee.
Defendants hired one worker, Roger, to perform a number of tasks,
such as maintaining Greenbrier and showing and renting apartments.
(Roger Dep. 132:12-24.)
He performed those duties from 1992 to
2014, (Roger Dep. 139:20-140:16), and he was never relieved of his
responsibilities,
(Roger
Dep.
21:14-22:6).
Dorothy
cites
Additionally, while the Second Circuit recently examined an
analogous “statutory exception to the FLSA for public agency
volunteers, [it] express[ed] no view on FLSA issues . .
. respecting purported private sector volunteers.” Brown,
755 F.3d at 161 n.3.
10
25
no
evidence that she ever applied for a job, submitted a resume, or
was hired by Defendants.
In 2009, she identified herself as a
homemaker in sworn filings with the Bankruptcy Court.
From the
outset, it appears that Dorothy helped Roger fulfill the duties
that
Defendants
hired
him
to
perform;
she
did
not
Defendants with a benefit in exchange for compensation.
provide
To be
sure, she sent emails on Roger’s behalf, (see, e.g., Oct. 2011
Emails, Myers Decl. Ex. 16, Docket Entry 64-16, at ECF p. 3), and
there is no doubt that Roger benefitted when Dorothy shouldered
some of his workload.
However, Defendants received no additional
benefit simply because Dorothy, rather than her husband, performed
those tasks.
See Emanuel v. Rolling in the Dough, Inc., No. 10-
CV-2270, 2012 WL 5878385, at *5 (N.D. Ill. Nov. 21, 2012) (“As a
matter of economic reality, if [plaintiff] and [her boyfriend]
were doing the same job and sharing duties[,] it stands to reason
that they would also share the salary of [the position].”).
Additionally, as Roger and Dorothy were replaced by only one
employee--Bagger--Dorothy did not displace any employees or confer
any additional, immediate advantage on Defendants.
See Glatt, 811
F.3d at 534, 537 (citing Walling, 330 U.S. at 149-50, 153, 67 S.
Ct. at 642, 91 L. Ed. 809).
While Defendants suggested that Dorothy help Roger with
his
job
and
sent
emails
to
“Roger/Dorothy”
or
sometimes
to
“Dorothy,” Defendants never promised to pay her and “rebuffed” her
26
requests
for
payment
during
her
many
years
at
Greenbrier.
(Dorothy’s Opp. at 7; Dorothy Dep. 56:11-17, 58:5-9, 134:4-22,
224:21-225:12.)
Thus, she could not have expected to receive
compensation for her efforts.
See Glatt, 811 F.3d at 534, 536-37
(citing Walling, 330 U.S. at 150, 67 S. Ct. at 640, 91 L. Ed. 809);
see also Brown, 755 F.3d at 165-67 (requiring that plaintiff’s
expectation of compensation be “reasonable” in the context of
public agency volunteer exception to FLSA). While Dorothy received
“commissions” of $2,400 during approximately one of her twentytwo (22) years at Greenbrier, it was clear that Defendants did not
authorize the commissions, but that Thek, and only Thek, was
responsible for the arrangement.
Defendants had denied Dorothy’s
request for a similar deal only months before and advised her that
the
commissions
receiving them.
56.1
were
shortly
after
she
began
(Defs.’ Dorothy 56.1 Stmt. ¶¶ 42, 44; Dorothy’s
Counterstmt.
225:12.)
unauthorized
¶
44;
Dorothy
Dep.
130:22-132:11,
224:21-
That she continued her efforts even after Defendants
ended her “commission” arrangement with Thek and after her other
unsuccessful requests for payment supports no other conclusion
than that she was helping Roger, not working for Defendants.
Nor
was Dorothy dependent on Defendants for compensation, as she
received only a nominal sum during her time at Greenbrier. Rather,
she depended on Roger, who earned a salary and accommodations for
his family in exchange for his work.
27
In
sum,
under
all
the
circumstances,
the
economic
realities establish that Dorothy was not Defendants’ employee.
The
primary
beneficiaries
of
Dorothy’s
Defendants, but Roger and Dorothy.
efforts
were
not
Dorothy makes much of the
expansive definition of “employee,” but that definition does not
include
“each
person
who,
without
promise
or
expectation
of
compensation, but solely for [her] personal purpose or pleasure,
worked in activities carried on by other persons either for their
pleasure or profit.”
Walling, 330 U.S. at 152, 67 S. Ct. at 641,
91 L. Ed. 809.
Courts
conclusion.
facing
similar
facts
have
reached
the
same
For example, in Sontheimer v. General Medicine, PC,
No. 14-CV-0417, 2015 WL 12591749, at *5 (W.D. Mich. Oct. 7, 2015),
the
court
found
that
an
employee’s
wife
was
not
herself
an
“employee” by virtue of helping him perform the tasks he was hired
to complete.
The Sontheimer court’s analysis fits the facts here:
Plaintiff [(employee’s wife)] had no express
or
implied
agreement
with
Defendant
[(husband’s employer)] that she would perform
services to assist her husband in exchange for
wages, even assuming arguendo that Plaintiff
herself “eventually wanted to be compensated.”
The record does not support the proposition
that Defendant substantially controlled the
terms and conditions of her work, claimed any
authority to hire or fire her, or maintained
any employment record, including a rate or
method of payment.
Neither does the record
support the proposition that Plaintiff was an
integral part of Defendant’s operations.
Rather, the record supports the proposition
28
that her activities were integral to, and
wholly dependent on, her husband’s employment
with Defendant and that her activities
concluded when [her husband’s] employment was
terminated. Last, the record does not support
the
proposition
that
Plaintiff
was
economically dependent on Defendant inasmuch
as Plaintiff does not dispute that she did not
apply to Defendant for paid employment but was
merely granted permission by Defendant to
accompany [her husband]. In sum, drawing all
reasonable inferences in Plaintiff’s favor,
the Court agrees that the factual setting in
this case does not give rise to coverage under
the FLSA.
Sontheimer, 2015 WL 12591749, at *5 (internal citations omitted)
(alterations added).
Similarly, in Emanuel, 2012 WL 5878385, at
*5, the court found that an employee’s life partner was not an
employee for FLSA purposes, despite the fact that she chose to
share his duties.
The court granted summary judgment to the
defendant-employer, reasoning that:
The economic reality here is that [employer]
hired [employee] to run the Elmhurst store and
[employee] supported [employee’s partner] and
their children.
The fact that [employee’s
partner] chose to assist [employee] with his
duties after being informed that she would not
be paid and that her efforts would be of better
use
elsewhere
does
not
mean
she
is
economically dependent on the defendants.
Id.; cf. Okoro v. Pyramid 4 Aegis, No. 11-CV-0267, 2012 WL 1410025,
at *9 (E.D. Wis. Apr. 23, 2012) (finding that plaintiff was an
employee where both she and the defendant-employer agreed that she
would
be
paid
for
her
work
in
the
future).
Additionally,
Plaintiff’s argument that Defendants’ knowledge of her continued
29
efforts to assist Roger with his duties created an employment
relationship is unconvincing.
See Emanuel, 2012 WL 5878385, at *4
(“Here, plaintiff . . . advances an absurd position.
[Plaintiff]
argues that defendant[’s] repeated statement that he would not pay
her to work at the Elmhurst store was not a refusal to hire her as
an employee, but an offer for her to work for free.
Since
[plaintiff] claims to have worked at the Elmhurst store without
compensation and without [defendant] forcibly ejecting her from
the store or otherwise preventing her from working, it is her
position that an employment relationship impliedly exists.”)
Therefore,
because
Dorothy
was
not
Defendants’
employee,11 Defendants’ motion for summary judgment on her claim
for unpaid minimum wages under the FLSA is GRANTED, and that claim
is DISMISSED WITH PREJUDICE.
See Sontheimer, 2015 WL 12591749, at
*5-6.
III. Dorothy’s State Law Claims
In light of the dismissal of Dorothy’s FLSA claim, only
her state law claims for unpaid minimum wages under the NYLL,
violations of the NYLL’s notice and record-keeping requirements,
retaliation under the NYLL, and quantum meruit remain.
“‘[A]bsent
exceptional circumstances, where federal claims can be disposed of
Because the Court concludes that Dorothy was not Defendants’
employee, it need not reach Defendants’ frivolous argument that
it is not an “enterprise engaged in commerce.”
11
30
pursuant to Rule 12(b)(6) or [on] summary judgment grounds, courts
should abstain from exercising pendant jurisdiction.’”
Milton v.
Valley Stream Cent. High Sch. Dist., No. 15-CV-0127, 2018 WL
1136909,
at
*11
(E.D.N.Y.
Mar.
1,
2018)
(citations
omitted)
(alterations in original); see also Sontheimer, 2015 WL 12591749,
at *5-6.
The Court determines that retaining jurisdiction over
the remaining state law claims is unwarranted.
Thus, the Court
declines to exercise supplemental jurisdiction over Dorothy’s
remaining claims pursuant to 28 U.S.C. § 1367(c)(3), and they are
DISMISSED WITHOUT PREJUDICE.
IV.
Roger’s Age Discrimination Claims
Defendants argue that Roger’s Age Discrimination Claims
must fail because he was unqualified for his job and cannot
establish a prima facie case of age discrimination.
(Defs.’ Roger
Br. at 11-15.) They further argue that they had legitimate reasons
for terminating his employment and that Roger cannot show that age
discrimination was the “but for” cause of his firing.
Roger Br. at 11-15.)
(Defs.’
Roger responds that he was qualified for his
position, that he has established a prima facie case, and that
Defendants’ purported non-discriminatory reasons for firing him
were pretextual.
(Roger’s Opp. at 8-14.)
“Under the ADEA, it is unlawful for an employer to
‘discriminate
against
individual’s age.’”
any
individual . .
. because
of
such
Boonmalert v. City of N.Y., --- F. App’x --31
-, No. 17-CV-1465, 2018 WL 496846, at *3 (2d Cir. Jan. 22, 2018)
(quoting 29 U.S.C. § 623(a)(1)) (ellipsis in original).
Courts
evaluate ADEA and NYSHRL age discrimination claims under the
burden-shifting framework laid out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
McGuire-Welch v. House of the Good Shepherd, --- F. App’x ----,
No. 16-CV-4095, 2018 WL 443487, at *1 (2d Cir. Jan. 17, 2018)
(citations omitted).
“Under this framework, ‘the plaintiff bears
the
of
initial
burden
establishing
a
prima
facie
case
of
discrimination,’” id. (quoting Delaney v. Bank of Am. Corp., 766
F.3d 163, 168 (2d Cir. 2014)), which he does by demonstrating “(1)
that he belonged to a protected class; (2) that he was qualified
for
the
position
he
held;
(3)
that
he
suffered
an
adverse
employment action; and (4) that the adverse employment action
occurred
under
circumstances
giving
rise
to
an
inference
of
discrimination,” Ben-Levy v. Bloomberg, L.P., 518 F. App’x 17, 1819 (2d Cir. 2013) (citing Weinstock v. Columbia Univ., 224 F.3d
33, 42 (2d Cir. 2000)).
If the plaintiff can establish a prima
facie case, “the burden shifts to the defendant to ‘articulate
some
legitimate,
nondiscriminatory
reason
for
its
action.’”
McGuire-Welch, 2018 WL 443487, at *1 (quoting Delaney, 766 F.3d at
168).
“If the defendant proffers such a reason, ‘the presumption
raised by the prima facie case is rebutted and drops from the
case,’” id. (quoting Kovaco v. Rockbestos-Surprenant Cable Corp.,
32
834 F.3d 128, 136 (2d Cir. 2016)), “and ‘the plaintiff must prove
that
the
employer’s
proffered
reason
was
a
pretext
for
discrimination,’” id. (quoting McPherson v. N.Y.C. Dep’t of Educ.,
457 F.3d 211, 215 (2d Cir. 2006)).
To show pretext under the ADEA,
the plaintiff must show that his age was the “but for” cause of
the adverse employment action, id. (citing Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010)), and the Second
Circuit has “assumed, without deciding, that this standard also
applies to age discrimination claims under the NYSHRL,” id. (citing
Gorzynski, 596 F.3d at 105 n.6).
With respect to Roger’s prima facie case, Defendants do
not dispute that as an individual who was fired while in his 60s
and
replaced
by
a
much
younger
worker,
Roger
belonged
to
a
protected class and suffered an adverse employment action under
circumstances
giving
rise
to
(Defs.’ Roger Br. at 12-13.)
an
inference
of
discrimination.
Defendants dispute only that Roger
was qualified for his position, based mainly on his alleged
inability to service Greenbrier’s boiler system.
(Defs.’ Roger
Br. at 12-13.) Roger argues that he was qualified for the position
of superintendent at Greenbrier.
(Roger’s Opp. at 8-9.)
“In order to establish the qualification element of a
discrimination claim, the plaintiff is only required to ‘establish
basic eligibility for the position at issue, and not the greater
showing that he satisfies the employer.’”
33
Jones-Khan v. Westbury
Bd. of Educ.-Westbury Union Free Sch. Dist., No. 13-CV-7144, 2017
WL 1483522, at *6 (E.D.N.Y. Apr. 25, 2017) (quoting Markovich v.
City of N.Y., No. 09-CV-5553, 2013 WL 11332465, at *5 (E.D.N.Y.
Aug. 21, 2013), aff’d, 588 F. App’x 76 (2d Cir. 2015)).
Given
that Defendants employed Roger for approximately twenty-two (22)
years and they only point to his inability to perform tasks related
to the boilers, a jury could find that Roger carried his minimal
burden of establishing the qualification prong of his prima facie
case.
Thus,
legitimate,
employment.
the
burden
shifts
non-discriminatory
to
reason
Defendants
for
to
provide
terminating
a
Roger’s
See McGuire-Welch, 2018 WL 443487, at *1 (quoting
Delaney, 766 F.3d at 168).
Defendants have articulated a number of reasons for
firing Roger: (1) Roger’s mishandling of Greenbrier’s new boilers,
including overseeing the incorrect installation of a circulator
pump and disobeying Defendants’ directives to leave the system
alone; (2) “the unauthorized occupancy and [(3)] illegal wiring of
apartment 311-3” that posed a hazard to the building’s tenants;
(4) Defendants’ subsequent discovery of Plaintiffs’ unauthorized
occupation of a “basement storage area/laundry room” and (5)
another room that their children used for exercise, (Defs.’ Roger
Br. at 12-14); (6) Roger’s unauthorized charges on Greenbrier’s
credit card, (Defs.’ Roger Reply at 4); (7) Plaintiffs’ removal of
the stove and refrigerator from their apartment, which the Court
34
acknowledges occurred after Roger was fired; and (8) the declining
quality of Roger’s work, (Roger’s Opp. at 10).
Because Defendants
have proffered legitimate, non-discriminatory reasons for firing
Roger, the burden shifts back to Roger to show that these reasons
were pretextual. See McGuire-Welch, 2018 WL 443487, at *1 (quoting
McPherson, 457 F.3d at 215 (2d Cir. 2006)).
Roger argues three points in support of his position
that
Defendants’
reasons
for
terminating
his
employment
were
pretextual: (1) Defendants have provided a number of “continually
shifting rationales” for firing Roger, (Roger’s Opp. at 10-12);
(2)
their
proffered
reasons
are
“post-termination
rationalizations,” (Roger’s Opp. at 12); and (3) Defendants used
Plaintiffs’ occupancy of apartment 311-3 as a pretext because they
fired him months after first discovering his occupancy, (Roger’s
Opp. at 12-14).
These arguments lack merit.
Roger cannot show
that Defendants’ reasons, “even if pretextual, served as pretext
for age discrimination.”
Norville v. Staten Island Univ. Hosp.,
196 F.3d 89, 98 (2d Cir. 1999) (emphasis added) (citing Fisher v.
Vassar Coll., 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc)).
With respect to Roger’s first argument, while “‘a jury
issue on the question of pretext may be created when an employer
offers inconsistent and varying explanations for its decision to
terminate a plaintiff,’” McGuire-Welch, 2018 WL 443487, at *2
(quoting Roge v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir.
35
2001)), there is no such inconsistency here.
Citing Norville,
Roger argues that the Court should not reconcile an employer’s
varying explanations for firing an employee.
12 (citing Norville, 196 F.3d at 98).)
(Roger’s Opp. at 11-
However, in Norville, the
defendant’s proffered reasons contradicted each other.
196 F.3d at 98.
Norville,
Here, Defendants consistently pointed to a number
of reasons that contributed to their decision to fire Roger, rather
than
to
several,
shifting
reasons
that
they
individually responsible for Roger’s termination.
claimed
were
Further, there
is no contradiction among Defendants’ proffered motives.
They
revolve around Roger’s unauthorized occupancy of and modifications
to
various
areas
of
Greenbrier,
his
alleged
conversion
of
utilities, appliances, and expenses, and his failure to properly
handle or follow instructions regarding the boilers.
See Roge,
257 F.3d at 170 (finding no pretext where the defendant’s multiple
proffered reasons for terminating the plaintiff’s employment were
not inconsistent); McGuire-Welch, 2018 WL 443487, at *2 (finding
no
inconsistency
in
explanations
for
termination
particular “failure was ‘the final straw’”).
where
one
That Defendants
recited different portions of their list of grievances, with
different levels of specificity at different times, does not change
the result, as none of the reasons casts doubt on the legitimacy
of any of the others.
36
Roger’s
second
argument,
that
Defendants
cited
his
unauthorized use of two additional Greenbrier rooms only after he
was fired, and that “[t]he fact that these issues were only raised
post-litigation
(Roger’s
strongly
Opp.
unconvincing.
previously
at
suggests
12
that
(citation
they
omitted)),
proffered
explanations
unauthorized
for
occupying
an
room”
permission.
is
similarly
occupation
terminating
of
adjacent
without
apartment,
paying
rent
rooms.
They did not want
the
or
Roger’s
Greenbrier
Defendants’ position was entirely consistent:
“exercise
pretextual,”
Again, these reasons are variations on Defendants’
employment--his
Roger
are
basement,
seeking
or
an
Defendants’
Moreover, Defendants took issue with his use of the
basement storage area prior to his termination, as they locked him
out of the room on the same day he was fired.
Thus, there is no
doubt
“post-termination
that
these
rationalizations”
reasons
that
are
not
evidence
Defendants’
pretext
for
age
argument--that
his
discrimination.
The
Court
finds
Roger’s
third
termination over his use of apartment 311-3 was pretextual because
Defendants discovered it in January 2014 but waited until May 2014
to fire him--to be equally unavailing. Roger argues that the first
strike against him was Defendants’ January 2014 discovery of his
use of the apartment and that “strike two” was the wiring issue
discovered later in January 2014, but that there was no third
37
strike against him.
According to Roger, this “suggests that now
Defendants had not decided to terminate [Roger], but he was on his
last legs.”
highlight
(Roger’s Opp. at 13-14.)
the
third
strike
against
In response, Defendants
Roger,
discovery of his mishandling of the boilers.
at
4-5.)
Significantly,
this
their
April
2014
(Defs.’ Roger Reply
sequence
of
events
supports
Defendants’ position that multiple, varied reasons contributed to
the decision to terminate Roger’s employment.
Finally,
even
if
any
of
the
above
circumstances
abstractly suggested pretext, Roger has failed to produce any
evidence that Defendants’ reasons “served as pretext for age
discrimination.” Norville, 196 F.3d at 98 (emphasis added) (citing
Fisher, 114 F.3d at 1339).
Roger “must ultimately establish ‘both
that the reason [for firing him] was false, and that discrimination
was the real reason.’”
Harnack v. Health Research Inc., No. 11-
CV-518S, 2013 WL 5951857, at *4 (W.D.N.Y. Nov. 6, 2013) (emphases
in original) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 515, 113 S. Ct. 2742, 2751, 125 L. Ed. 2d 407 (1993)).
The
sole circumstance supporting Roger’s Age Discrimination Claims is
that he was replaced with a younger worker.
“[T]ypically ‘a
replacement worker’s age, without more, is insufficient to prove
age
discrimination.’”
Id.
(quoting
Dieck
v.
Suffolk
Cty.
Vanderbilt Museum, No. 09–CV–2263, 2011 WL 4434066, at *5 (E.D.N.Y.
Sept. 22, 2011)).
The Court concludes that in this case, Roger
38
has failed to proffer evidence sufficient to support a finding
that Defendants’ legitimate, non-discriminatory reasons for firing
him were pretexts for age discrimination.
See id. at *6 (quoting
Fagan v. N.Y. State Elec. & Gas Corp., 186 F.3d 127, 135 (2d Cir.
1999)) (“Accordingly, aside from the fact that younger employees
were hired after [plaintiff] was discharged, there is no evidence
of age-based discrimination. . . .
[I]n this case the replacement
workers’ age is insufficient for a fact-finder to infer that the
pretext was masking unlawful discrimination.” (internal quotation
marks and citations omitted)).
Rather, the evidence bears one
conclusion, that Defendants fired Roger for a host of contributing
reasons, none of which was his age.
Thus, Roger cannot show that
his age was a “motivating factor” in his termination, let alone
the “but for” cause of the decision.
See McGuire-Welch, 2018 WL
443487, at *1 & n.1.
Accordingly,
Roger’s
Age
Discrimination
Claims
are
DISMISSED WITH PREJUDICE.
V.
Roger’s Retaliation Claims
Roger asserts that Defendants retaliated against him for
complaining about the alleged age discrimination in violation of
the ADEA and the NYSHRL by restricting his access to the basement
storage room and refusing to pay him the second installment of his
39
severance.12
Defendants contend that he cannot succeed on his
Retaliation Claims because he cannot show that he suffered a
materially
adverse
employment
action
or
a
causal
connection
between a protected activity and the employment action, and, as a
result, does not set forth a prima facie case of retaliation.
(Defs.’ Roger Br. at 15-17.)
Additionally, they argue that they
had a legitimate and non-retaliatory reason for restricting his
access to the basement storage area.
(Defs.’ Roger Br. at 15-17.)
Roger responds that he has established a prima facie claim and
that Defendants’ supposed legitimate reasons for their acts of
retaliation are pretextual. (Roger’s Opp. at 14-19.)
“[T]he ADEA . . . [and] the NYSHRL . . . contain antiretaliation provisions that prohibit an employer from retaliating
against an employee for opposing discriminatory conduct prohibited
by the statutes.”
Shih v. JPMorgan Chase Bank, N.A., No. 10-CV-
9020, 2013 WL 842716, at *5 (S.D.N.Y. Mar. 7, 2013) (citations
omitted).
“While there are slight differences in the showing
The Court notes that “[a] successful retaliation claim ‘is not
dependent on the merits of the underlying discrimination
complaint.’” Matya v. United Ref. Co., 323 F. App’x 65, 67 (2d
Cir. 2009) (quoting Davis v. State Univ. of N.Y., 802 F.2d 638,
642 (2d Cir. 1986)). Moreover, plaintiffs may pursue claims for
acts of retaliation that occurred after their employment with
the defendant ended. See, e.g., Boland v. Town of Newington,
304 F. App’x 7, 9 (2d Cir. 2008) (“Accordingly, a former
employee . . . can sue a former employer under ADEA on the
grounds that the employer retaliated against the former employee
for bringing an age discrimination claim.”).
12
40
needed to make out a prima facie case for retaliation from that
for
discrimination,”
the
McDonnell
Douglas
burden-shifting
framework applies to Roger’s Retaliation Claims.
Ben-Levy, 518 F.
App’x at 19 (citing cases).
Roger
has
activity
to
demonstrate
known
to
the
To establish his prima facie case,
“‘[1]
participation
defendant;
[2]
an
in
a
protected
employment
action
disadvantaging the plaintiff; and [3] a causal connection between
the
protected
activity
and
the
adverse
employment
action.’”
Boonmalert, 2018 WL 496846, at *3 (alterations in original); see
also Shih, 2013 WL 842716, at *5 (citing cases) (“The antiretaliation provisions in Title VII, the ADEA, the ADA, and the
NYSHRL contain nearly identical language and are analyzed under
the same framework.”).
Defendants then must “proffer a non-
discriminatory reason for the challenged action, whereupon the
burden
shift[s]
pretextual.”
back
to
[Roger]
to
show
that
reason
was
McGuire-Welch, 2018 WL 443487, at *3 (citing Treglia
v. Town of Manlius, 313 F.3d 713, 721 (2d Cir. 2002)).
Defendants do not dispute that by having his attorneys
send them the June 2, 2014 letter complaining of age discrimination
and wage and hour violations, Roger engaged in a protected activity
known to Defendants.
However, they dispute that he was subjected
to any adverse employment action.
(Defs.’ Roger Br. at 15-16.)
Additionally, Defendants argue that there is no causal connection
between their locking the basement storage area on May 2, 2014 and
41
Plaintiffs’ subsequent complaint on June 2, 2014.
Br. at 16.)
(Defs.’ Roger
On the latter point, Roger agrees, (Roger’s Opp. at
14), so the only remaining issues are whether Defendants’ further
restriction of Plaintiffs’ access to the basement and Defendants’
failure to pay Roger the second severance installment are adverse
employment actions.
Defendants maintain that restricting Plaintiffs’ access
to the basement storage area after they received Plaintiffs’ letter
was not an adverse employment action, but a “petty slight[ ] or
minor annoyance[ ].”
(Defs.’ Roger Br. at 16 (citation omitted).)
Roger argues that after Defendants initially locked the basement
storage area on May 2, 2014, he and Dorothy “could easily access
the storage room where they kept personal belongings by requesting
access from the on-site superintendent.”
(Roger’s Opp. at 14.)
However, after Defendants received the June 2, 2014 letter, Dorothy
“was
suddenly
denied
access
by
the
new
superintendent,”
was
“further informed . . . that they could not access the storage
room without the express permission of Defendants,” and was told
by Emmett that “as a result of [the letter, he] decided to lock
[Roger] and his family out of the storage room.”
(Roger’s Opp. at
15.) Roger does not contest that on multiple occasions, Defendants
granted supervised access to the room to remove the family’s
belongings.
42
While Defendants dispute Roger’s version of events,
(Defs.’ Roger Reply at 6-7), the Court must view the facts in the
light most favorable to Roger.
Thus, the question for the Court
is whether Roger suffered an adverse employment action when he had
to seek the express permission of one of the Defendants for
supervised access to the basement instead of requesting access
from an on-site superintendent.13
“It is well-established that a plaintiff sustains an
adverse employment action if he or she endures a ‘materially
adverse change’ in the terms and conditions of employment. Dickens
v. Hudson Sheraton Corp. LLC, 689 F. App’x 670, 672 (2d Cir. 2017)
(quoting Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d
Cir. 2000)), cert. denied, 138 S. Ct. 335, 199 L. Ed. 2d 224
(2017), reh’g denied, No. 17-5712, 2018 WL 491641 (U.S. Jan. 22,
2018).
than
The change in working conditions “must be ‘more disruptive
a
mere
inconvenience
responsibilities.’”
Sch.
Dist.,
801
or
an
alteration
of
job
Id. (quoting Vega v. Hempstead Union Free
F.3d
72,
85
(2d
Cir.
2015)).
Examples
of
materially adverse employment actions include “‘a termination of
employment, a demotion evidenced by a decrease in wage or salary,
Roger frames the retaliatory action as Defendants’ “greatly
restricting [his] access after June 2, 2014 . . . . [by]
switching from allowing the new superintendent to provide
access . . . to suddenly requiring the Defendants’ express
permission.” (Roger’s Opp. at 18.)
13
43
a
less
distinguished
significantly
title,
diminished
a
material
material
loss
responsibilities
indices . . . unique to a particular situation.’”
Vega, 801 F.3d at 85).
of
benefits,
or
other
Id. (quoting
Significantly, while anti-retaliation
provisions “do contemplate that conduct that ‘well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination’ may be a materially adverse action against a
worker,”
the
“‘significant
reference
from
to
trivial
material
harms’
adversity
because
‘[a]n
separates
employee’s
decision to report discriminatory behavior cannot immunize that
employee from those petty slights or minor annoyances that often
take place at work and that all employees experience.’”
Id. at
672-73 (alteration in original) (quoting Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L.
Ed. 2d 345 (2006)).
That Plaintiffs had to obtain permission from Defendants
to access the basement storage room instead of asking the on-site
superintendent is not a materially adverse employment action.
Plaintiffs acknowledge that Defendants granted them access to the
room to retrieve their belongings, and the fact that their access
was supervised after they sent Defendants the June 2, 2014 letter
does not change the analysis.
These are the types of “trivial
harms” that could not have “dissuaded a reasonable worker” from
making a charge of discrimination.
44
See, e.g., El v. N.Y. State
Psychiatric Inst., No. 13-CV-6628, 2014 WL 4229964, at *7 (S.D.N.Y.
Aug. 19, 2014) (holding that employer’s yelling at and requiring
employee to seek permission to use the washroom were petty slights
or minor annoyances that did not rise to the level of materially
adverse
changes
in
employment).
Defendants’
restriction
of
Roger’s access to the basement storage room does not rise to the
level of a materially adverse employment action, and Roger has not
stated a prima facie case of retaliation with respect to this act.
However, Roger has established a prima facie case of
retaliation relating to Defendants’ refusal to pay him the second
half of his severance, which a jury could conclude is sufficiently
material
to
constitute
an
adverse
employment
action.
That
Defendants ignore this claim in their briefing is telling, as is
William’s testimony on this issue:
Q.
When [Roger] vacated, was he supposed to
get money from yourself, from the company?
A.
If I recall, I think we offered him some
kind of expense money to move or whatever.
Q.
Was that money paid?
A.
Half.
Q.
Do you know some reason why the other
half was not paid?
A.
I guess he retained counsel to sue us.
It wasn’t part of the arrangement that was
fair. . . .
The first part was paid.
We
weren’t aware of a legal suit.
Q.
And then you received legal papers?
A.
Right.
(William Dep. 11:12-12:2.)
Therefore, Roger’s claim based on the
unpaid severance will proceed to trial.
45
Accordingly, Roger’s Retaliation Claim with respect to
restricted access to the basement storage area is DISMISSED WITH
PREJUDICE.
VI.
Breach of Contract
Roger’s claim for breach of contract also rests on
Defendants’ failure to pay him the second severance installment.
Defendants
maintain
that
Roger
cannot
recover
for
breach
of
contract because there was no contract supported by consideration,
and even if there was, he breached the contract by taking the stove
and refrigerator from the apartment when he left.
Br. at 20-21.)
contract--his
(Defs.’ Roger
Roger argues that the parties had a written
termination
notice
14
--
and
that
his
“past
consideration” for the contract was sufficient under New York
General Obligations Law § 5-1105.
(Roger’s Opp. at 19-20.)
Under New York law, a contract must be supported by
consideration.
14
Greenberg v. Greenberg, 646 F. App’x 31, 32 (2d
The termination notice provides:
In consideration of your many years of service, we
will provide you with a severance of (1) month’s
salary and continue the same arrangement for your
health insurance until 5/31/14. We will provide you
with half of your severance payment on 5/2/14 and the
other half will be given to you upon vacating your
apartment at Greenbrier Garden Apartments on June 17,
2014. We ask that you communicate your departure date
with Barbara Leeb, our Property Manager.
(Termination Letter, Myers Decl. Ex. 8, Docket Entry 79-8.)
46
Cir. 2016) (quoting Startech, Inc. v. VSA Arts, 126 F. Supp. 2d
234, 236 (S.D.N.Y. 2000)).
“‘Consideration is defined as either
a bargained for gain or advantage to the promisee or a bargained
for legal detriment or disadvantage to the promisor.’”
Id.
(quoting Startech, Inc., 126 F. Supp 2d at 237).
Here, Roger argues that Defendants’ termination letter
is a “written contract signed by Defendants, that [Roger] agreed
to, which entitled him to severance pay.”
Specifically,
severance
he
“[i]n
service.”15
contends
that
consideration
(Roger’s Opp. at 19.)
Defendants
of
agreed
[Roger’s]
to
many
pay
him
years
of
(Roger’s Opp. at 19-20 (citation omitted).)
“‘Generally, past consideration is no consideration and
cannot support an agreement because the detriment did not induce
the promise.’”
Greenberg, 646 F. App’x at 32 (quoting Samet v.
Binson, 122 A.D.3d 710, 996 N.Y.S.2d 149, 150 (App. Div. 2d Dep’t
2014)). However, past consideration may act as consideration under
a statutory exception to the general rule.
New York’s General
Obligations Law Section 5-1105 provides:
A promise in writing and signed by the
promisor or by his agent shall not be denied
effect as a valid contractual obligation on
the ground that consideration for the promise
is past or executed, if the consideration is
While Roger did not argue the point, the Court notes that
there is no evidence that Roger was entitled to remain in the
apartment beyond June 17, 2014 such that his “agreement” to
vacate on that date served as consideration. (See Defs.’ Roger
Br. at 20-21; Defs.’ Roger Reply at 9-10.)
15
47
expressed in the writing and is proved to have
been given or performed and would be a valid
consideration but for the time when it was
given or performed.
N.Y. Gen. Oblig. Law § 5-1105.
For
the
consideration
to
be
“expressed”
within
the
meaning of the statute, “the recitation of consideration must not
be vague or imprecise.”
Genger v. Genger, 76 F. Supp. 3d 488, 498
(S.D.N.Y. 2015) (footnote omitted), aff’d, 663 F. App’x 44 (2d
Cir. 2016).
“[C]ourts have held that the statements ‘past work on
the Company’s behalf’ and ‘services rendered on the respondent’s
behalf’ are too vague and imprecise to meet [Section 5-1105’s]
expression requirement.”
Genger, 76 F. Supp. 3d at 498 (citing
United Res. Recovery Corp. v. Ramko Venture Mgmt., Inc., 584 F.
Supp. 2d 645, 656 (S.D.N.Y. 2008); Umscheid v. Simnacher, 106
A.D.2d 380, 380, 482 N.Y.S.2d 295, 297 (App. Div. 2d Dep’t 1984)).
By contrast, “a promise to pay all of a company’s debts on an
ongoing
basis,”
id.
at
498-99
(citing
Movado
Grp.,
Inc.
v.
Presberg, 259 A.D.2d 371, 371, 687 N.Y.S.2d 116, 116–17 (App. Div.
1st Dep’t 1999)), and an agreement stating that parties “are
benefiting by the receipt of a total of 794.40 shares of Trans–
Resources, Inc. (“TRI”), or beneficial interests in those shares,
by
trusts
original),
for
have
[their]
been
benefit,”
found
to
48
id.
be
at
499
(alterations
“sufficiently
precise
in
and
unambiguous so as to satisfy § 1105’s expression requirement.”
Id.
The
language
in
the
termination
letter
here,
“[i]n
consideration of your many years of service,” is an inadequate
expression of consideration under Section 5-1105.
It is virtually
identical to language that other courts have found to be “vague,
imprecise,” and requires “resort to evidence extrinsic to the
documents . . . to give meaning to the consideration ‘expressed’
in those documents.”
Umscheid, 106 A.D.2d at 381, 482 N.Y.S.2d at
297-98 (citing Persico Oil Co. v. Levy, 64 Misc. 2d 1091, 1092,
316 N.Y.S.2d 924, 925 (Sup. Ct. Albany Cty. 1970)) (holding that
“[t]he consideration alluded to in the documents, viz., services
rendered
on
the
respondent’s
behalf,”
was
inadequate);
see
Greenberg, 646 F. App’x at 31-32 (finding inadequate expression of
consideration where document provided that “[t]his is a gift that
is being given because of a through [sic] the years I Marshall
Greenberg
have
given
many
gifts
and
many
loans
to
Derrick
Greenberg.”); United Res. Recovery Corp., 584 F. Supp. 2d at 65556 (finding statement “in consideration of past work on the
Company’s behalf” to be inadequate expression of consideration
under statute).
Defendants
and
Thus, it cannot serve as consideration for
Roger’s
purported
severance
agreement;
the
termination letter was not an “agreement” for Defendants to pay
Roger severance, but rather, an unenforceable gratuitous promise.
49
Shain v. Ctr. for Jewish History, Inc., No. 04-CV-1762, 2006 WL
3549318, at *5 (S.D.N.Y. Dec. 7, 2006) (holding that promise of
severance
pay
without
mention
of
executing
a
release
in
consideration of the severance was “nothing more than a gratuitous”
promise).
Accordingly,
Roger’s
breach
of
contract
claim
is
DISMISSED WITH PREJUDICE.
CONCLUSION
For
the
foregoing
reasons,
Defendants’
motion
for
summary judgment against Dorothy Figurowski (Docket Entry 54) is
GRANTED IN PART and DENIED IN PART.
Dorothy’s overtime claims
under the FLSA and the NYLL and her minimum wage claim under the
FLSA are DISMISSED WITH PREJUDICE.
The Court declines to exercise
supplemental jurisdiction over her remaining state law claims, and
they are DISMISSED WITHOUT PREJUDICE to refiling in state court.
The Clerk of the Court is directed to TERMINATE Dorothy Figurowski
as a Plaintiff in this matter and to enter judgment accordingly.
Defendants
and
Lieb’s
motion
for
summary
judgment
against Roger Figurowski is GRANTED IN PART and DENIED IN PART.
Specifically, the motion is DENIED with respect to Roger’s claim
for retaliation under the ADEA and the NYSHRL for Defendants’
refusal to pay him severance, and GRANTED in all other respects.
Accordingly, his claims for age discrimination under the ADEA and
the NYSHRL, retaliation under the ADEA and NYSHRL relating to his
50
restricted access to the basement storage room, aiding and abetting
by Lieb in violation of the NYSHRL, and breach of contract are
DISMISSED WITH PREJUDICE.
The Clerk of the Court is directed to
TERMINATE Barbara Lieb as a Defendant in this matter.
The parties shall file letters within fourteen (14) days
of the date of this Memorandum and Order setting forth their
respective positions on scheduling a settlement conference with
Judge
A.
Kathleen
Tomlinson.
Additionally,
the
parties
are
directed to file a revised proposed joint pretrial order within
thirty (30) days of the date of this Memorandum and Order and are
further directed to appear for a pre-trial conference with Judge
Tomlinson on May 14, 2018 at 11:30 a.m.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
March
30 , 2018
Central Islip, New York
51
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